BREAKING: High Court Says Visa Denials Not Open To Judicial Review

Law360, New York (June 15, 2015, 10:25 AM ET) — The U.S. Supreme Courton Monday upheld the long-standing concept of consular nonreviewability by ruling that visa refusals cannot be subjected to court scrutiny, while also holding that the denial of a visa to a U.S. citizen’s spouse does not impact the citizen’s own constitutionally protected interest.

In a closely watched 5-4 ruling, the high court reversed the Ninth Circuit’s finding that a U.S. citizen, whose spouse’s visa application was refused for security reasons, has due process rights that allow her to seek judicial review, along with a broader explanation for the decision.

Justice Anton Scalia, writing in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, said that because the U.S. citizen was not deprived of “life, liberty, or property” when the government denied the spouse admission to the U.S., there is no process due under the Consitution.

“To the extent that she received any explanation for the government’s decision, this was more than the Due Process Clause required,” Scalia wrote.

Justices Anthony Kennedy and Samuel Alito wrote their own concurring opinion.

The decision falls in line with the concept of consular nonreviewability, which holds that aliens outside the U.S. cannot have a consular officer’s denial of a visa reviewed by a court.

The case itself stems from an attempt by U.S. citizen Fauzia Din to secure a visa for her husband, Kanishka Berashk, a clerk for the Afghan Ministry of Education.

After Din filed Berashk’s visa petition in 2006, and U.S. Citizenship and Immigration Serviceseventually told her that the visa petition was approved and her husband was scheduled for a visa interview at the embassy in Islamabad, Pakistan.

However, although the consular officer who interviewed Berashk said he should expect to receive his visa in two to six weeks, Berashk was instead informed nine months later that his visa had been denied.

The embassy later said the visa was rejected under a provision of the INA that deems a noncitizen ineligible for a visa due to terrorist activities, without providing a detailed explanation of the reasons for its decision. Din then filed suit in district court, but the case was dismissed on grounds of consular nonreviewability.

But the Ninth Circuit reversed the decision in May 2013, finding that without allegations of proscribed conduct, the government’s citation of the INA anti-terrorist provision wasn’t enough to deny the visa. The government subsequently filed a petition with the high court.

While Din argued that she has a constitutionally protected liberty interest in being able to choose where to live with her husband, and the government contended that nothing in the INA gives Din a right to judicial review of a visa denial.

Specifically, the government argued that Din has no liberty interest, under the INA or the due process clause, the is implicated by a visa denial to her foreign-born spouse. Further, an examination of the consular officer’s visa denial can’t be squared with consular nonreviewability, the government said.

“No such congressional authorization for review of visa denials exists,” the government argued. “Congress has not provided even for administrative review of a consular officer’s refusal of a visa.”

Several outside parties had weighed in on the case, with the National Immigrant Justice Center, the American Immigration Lawyers Association and Muslim rights organization the Council on American-Islamic Relations have all asking the high court to affirm the Ninth Circuit’s decision.

Tonight PBS presents a documentary about the first same-sex couple to challenge homophobic discrimination in US immigration laws. Richard and Tony started fighting to stay together in 1975 and fought on for 40 years until DOMA was overruled in 2013. Check it out: http://www.pbs.org/independentlens/limited-partnership/.

USCIS just announced that it now publishes processing times for I-130, I-131, and I-730 petitions processing at certain overseas offices. This is a great start to helping immigrants understand and manage expectations about what to expect when applying for immigration benefits at US embassies, consulates, and regional international offices. Immigrants, their families, and their attorneys will hope that USCIS publishes data about more forms that are processed overseas.

For the last eight years, I have been a volunteer attorney at the Irish International Immigrant Center (“IIIC”).

The IIIC holds free legal clinics a few times a month at various locations in Boston, providing free legal consultations and referrals to immigrants and their families.

I attend the clinic at the downtown IIIC location about once per month. I advise clients on a variety of immigration matters, refer them to private counsel, and help others set up their cases for direct representation by the IIIC. The clients with whom I meet are from all parts of the world, although the IIIC has special funding for representation of Irish citizens.

This week the US Supreme Court in Mellouli v. Lynch decided that an immigrant can only be found removable for convictions related to “controlled substances” where the substance is actually listed on the federal controlled substances list. In this case, Mellouli was convicted of a controlled substances violation in Kansas. In Kansas, the controlled substances list includes items not on the federal controlled substances listed. Mellouli was convicted of Kansas’s state crime of possession of unnamed pills and paraphernalia (a sock!). Because the pills and the socks were not on the federal controlled substances list, his conviction in Kansas–even for “drug” crimes–could not trigger removability under INA §237(a)(2)(B)(i).

Current TPS Somalia beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that runs from June 1, 2015, through July 31, 2015. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. USCIS will not accept applications before June 1, 2015.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible TPS Somalia beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March, 17, 2017.

The Form I-765 application fee or a fee waiver request, but only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required.

Applicants may request that USCIS waive the Form I-765 application fee and/or biometrics fee based on an inability to pay. To do so, applicants must file a Form I-912, Request for Fee Waiver, or submit a written request. Fee waiver requests must be accompanied by supporting documentation. USCIS will reject the TPS application of any applicant who fails to submit the required filing fees or a properly documented fee waiver request.

All USCIS forms are free. Applicants can download these forms from the USCIS website at uscis.gov/forms or request them by calling USCIS toll-free at 1-800-870-3676.

Additional information on TPS for Somalia —including guidance on eligibility, the application process and where to file—is available online at uscis.gov/tps. Certain individuals who are not current TPS beneficiaries may be able to apply late for TPS under the Somalia designation. Information on Late Initial Filing is also available at uscis.gov/tps. Further details about this extension of TPS for Somalia, including the application requirements and procedures, appear in a Federal Register notice published today.

Applicants seeking information about the status of their individual cases can check My Case Status Online, or call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).